Tenancy By The Entirety: What Married Couples Should Know About Taking
Nothing in this blog constitutes legal advice. This information is not intended as legal advice or representation. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. ________________________________________________________________________
In real estate, the three most common ways that joint owners in property hold title are: joint tenancy, tenancy in common, and tenancy by the entirety. Each of the three arrangements offers different advantages, so it’s important to understand which choice is the best fit. Married couples frequently choose to hold title in tenancy by the entirety because of the benefits it provides.
What is tenancy by the entirety and how does it work? In Massachusetts, tenancy by the entirety (herein “tenancy” or “tenancy by the entirety”) is an option only available to married couples when acquiring title to property in the Commonwealth.[1] The basic theory that underlies the tenancy doctrine is that a married couple is viewed as a single unit for legal purposes. To qualify though, a couple must be married at the time they take title.[2] Furthermore, according to Massachusetts General Law (“M.G.L.”) chapter 184, § 7, the deed must explicitly state that title will be taken as a tenancy by the entirety.[3] The applicable statute says, “A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage or a devise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety.”[4]
Under common law, a distinctive feature of the tenancy is the right of survivorship, which stipulates that neither spouse can unilaterally terminate or sever.[5] The original rule entitled [only] the husband to manage, control, and possess the couple's estate during the marriage.[6] The law governing tenancy by the entirety was later amended by the legislature when M.G.L. chapter 209, § 1 was enacted.[7] The legislative intent was for those changes to apply in tenancies established after February 11, 1980.[8] In a landmark case, Coraccio v. Lowell Five Cents Savings Ban, the Massachusetts Supreme Judicial Court (“SJC”) recognized that a wife maintained the same rights as a husband in the estate.[9] Further, the SJC held that the statute "clearly preclude[d] the seizure of the principal residence of the spouses," except where there was a joint debt or the debt was for necessaries.[10]
The major benefit that the tenancy by the entirety provides to its possessors today is protection against creditors. Under M.G.L. c. 209, § 1, it states that the “interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.”[11] Therefore, if one spouse has an outstanding debt, a creditor will not be able to force the sale of the property without approval from both spouses.
Whether tenancy by the entirety provides the best option for taking title is a personal issue for married couples to examine. Such couples should consider speaking with a licensed attorney to ensure they have a full understanding of the rules before making a decision. ________________________________________________________________________
Citations:
1. Jon W. Bruce & James W. Ely, Jr., Cases and Materials on Modern Property Law 289 (3d ed. 1994); see also 4A Powell & Rohan, supra note 4, ¶ 621.
2. Ryan P. B. Kelly, Parker | Scheer, LLP, Tenancy Agreements in Massachusetts
4. Id.
5. Charles Donahue, Jr. et al., Property 531 (3d ed. 1993); see also 4A Powell & Rohan, supra note 4, ¶ 622[1].
6. 4A Richard R. Powell & Patrick J. Rohan, Powell on Real Property ¶ 622[2] (1993).
7. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150, 612 N.E.2d 650, 653-54 (1993).
8. Id.
9. Coraccio, 415 Mass. at 150-52, 612 N.E.2d at 653-55.
10. Id. at 151, 612 N.E.2d at 654.
Disclaimer – Blog Not Legal Advice – No Attorney-Client Relationship Formed by These Posts or By Any Comments, or By Comments Replying to Comments, on This Blog. The information and materials on this blog are provided for general informational purposes only. This information is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.
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